Sleeman v. Hotchkiss — 36 N.Y. St. Rep. 540

Majority

p. 540

Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Pleading—Amendment.

This action was brought in 1885 to procure the cancellation oí a written contract, the transfer of certain stock and other equitable relief. After several attempts to bring it to trial plaintiff obtained permission to apply to the special term for leave to amend, and in 1888 made a motion to amend by substituting a cause of action purely legal and substantially for a conspiracy. Held, that the motion was properly denied, both on the ground of want of power to grant it and on the ground of laches.

Appeal from order denying plaintiff’s application for leave to serve an amended complaint.

B. J. Moses, Jr., for app’lt; M Louis Lowe, for resp’ts.

The record discloses that this action was commenced in November, 1885; the object was to written contract referred to, to compel the transfer of certain shares of stock, to procure an injunction pendente lite, and to obtain the assessment of damages according to the rules and practice of the court, and for other and further relief. The original complaint was served in December, 1885. In 1886 an application was made upon the defendants’ answers and upon the complaint and affidavits for an injunction, which was denied. The plaintiff thereupon served an amended complaint in February, 1886. The defendants Paterson, Richardson and the National Gas Saving Co. interposed separate answers. The cause was subsequently brought to trial at the equity term, and it was then and there conceded that two of the defendants, Hotchkiss and the Gas Saving Co., had not been served, had not appeared, and that no equitable relief could be granted against them. The complaint as to them was, therefore, dismissed in so far as it prayed equitable relief.

The plaintiff, notwithstanding all these circumstances, made no attempt to amend, but after waiting for nearly two years, moved the cause for trial at circuit, upon precisely the same pleadings as before. That trial was interrupted by the withdrawal of a juror, and it appears that at that time the defendant Hotchkiss had been dead for more than a year, and a discontinuance as against the

p. 541

Gas Saving Co. had been entered. Without an effort to amend, the plaintiff again pressed the cause for trial in November, 1888, upon the same pleadings and issues. Objection was then and there taken, however, that no relief could be granted under the complaint as it then stood, which the court sustained and gave the plaintiff permission to apply to the special term for leave to amend, which was granted, with the alternative, however, that the defendants should have judgment on the merits in case the plaintiff failed to make the application or pay the costs of the circuit within twenty days after service of the order. The plaintiff subsequently moved to amend, and, it appears, not by making alterations in or additions to the original or amended complaint, but by attempting to substitute a cause of action purely legal and substantially for a conspiracy. The motion was denied for the reason that this was an attempt to change the cause of action which, under the Code, the court had not the power to permit.

The learned counsel for the appellant is, therefore, mistaken in his proposition that there was any inconsistency or any conflict in these various rulings. These proceedings are easily understood, and are all in consonance with very well established legal principles.

Independently of this there was great delay in the application for the amendment, the necessity of which was demonstrated by the proceedings which took place before application was made to accomplish it. In seeking to substitute an entirely new cause of action, the plaintiff was endeavoring to effect a legal impossibility.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.